Category Archives: Free Speech

Corporations and the First Amendment

We live in an era when everything–every case decided by the Courts, every law passed by Congress or a state legislature, every encounter between police and citizens–generates frightening headlines, hysterical tweets, and multiple emails from activist organizations exhorting recipients to take action (usually involving signing a petition and sending money).

So it’s easy to become jaded, to attribute the decibel level to partisanship, or a lack of perspective or analysis. I know I increasingly find myself thinking “just chill out. This isn’t the end of the world. Get a grip.”

Some things, however, prove to be every bit as worrisome as the scolds and screamers predicted. A grim assessment from a recent Harvard study suggests that the consequences of Citizens United and the line of cases leading up to it have been even more damaging than we were warned at the time.

Some of the study’s key findings include

While the First Amendment was intended to protect individual freedom of religion, speech and assembly, as well as a free press, corporations have begun to displace individuals as its direct beneficiaries. This “shift from individual to business First Amendment cases is recent but accelerating.”

Over time the high court has shown an increasing willingness to rule in favor of corporate interests, as a result “reducing law’s predictability, impairing property rights, and increasing the share of the economy devoted to rent-seeking rather than productive activity.”…

The ability for corporations to obtain relief from the courts gives them incentive to “place bets not on new technologies or marketing strategies, but on legal and political ‘innovation’” to protect markets they have and exclude new entrants. This also has the effect of causing regulatory agencies to reduce their efforts, because enforcing existing laws becomes increasingly difficult….

American public discourse tends to be very bipolar and “zero sum.” Policies are either right or wrong, good or bad. A right accorded to X must mean diminished rights for Y.

In the real world, however, the goal of policy is more often than not to achieve an appropriate balance between or among competing interests, all of whom are entitled to have their rights respected. Most Americans would agree that businesses have the right to participate in the marketplace of ideas, and that the law should respect the fiction of corporate “personhood” in the contexts for which that personhood was originally created.

It is when Court decisions and legislative actions create troubling imbalances of power, we risk substantial damage to our social ecosystem. Cases like Citizens United and Hobby Lobby have upset that balance, empowering corporations while disempowering individual citizens.

“These findings present a challenge to the view, articulated by the majority and concurrences in Citizens United and Hobby Lobby, that corporations and other business entities should be understood ‘simply’ as aggregations or associations of individuals, and so should not be distinguished from them for purposes of First Amendment analysis,” the author writes in his conclusion, continuing: “The corporate takeover of the First Amendment represents a pure redistribution of power over law with no efficiency gain — ‘rent seeking’ in economic jargon. That power is taken from ordinary individuals with identities and interests as voters, owners and employees, and transferred to corporate bureaucrats pursuing narrowly framed goals with other people’s money. This is as radical a break from Anglo-American business and legal traditions as one could find in U.S. history.”

Sometimes, the decibels are appropriate.

Lie Detectors and the First Amendment

Anyone who watches dramatized detective shows–especially those of the CSI variety–knows that the real starring role is played by technology: cool, highly sophisticated devices that virtually no real-life crime lab can afford. These shows are fun, but accuracy isn’t the strong suit of storylines that need to be resolved in an hour’s time. (Fingerprint identification isn’t the slam dunk that Abby’s computer makes it seem on NCIS.)

Even the popular culture shows that don’t rely on “gee whiz” gadgetry, however, routinely use lie detectors. So the general public can be forgiven for thinking that lie detectors work.

They don’t. At least, not reliably. As Morton Tavel has noted

In 2003, the National Academy of Sciences (NAS), after a comprehensive review, issued a report entitled “The Polygraph and Lie Detection,” stating that the majority of polygraph research was “unreliable, unscientific and biased”, concluding that 57 of approximately 80 research studies—upon which the American Polygraph Association relies—were significantly flawed. It concluded that, although the test performed better than chance in catching lies—although far from perfect—perhaps most importantly, they found the test produced too many false positives.

In other words, nervous people who are telling the truth can easily fail the test. And many do.

This lack of reliability is widely understood in the legal community and among police officers; it’s why most courtrooms don’t admit lie detector results into evidence. It’s also why several ex-police officers have spoken out against their use, and why a subset of them has helped job applicants and others who face “screening” by detectors learn techniques that will help them pass.

And that brings us to a fascinating question. Is helping people pass a lie detector test a crime? What if you aren’t just helping Nervous Nellie tell the truth in a way that won’t trip the machine, but you are helping Sneaky Sam lie?

Douglas Gene Williams, a former Oklahoma City police polygraphist and the proprietor of Polygraph.com,  has been teaching individuals how to pass polygraph tests since 1979. He has recently been indicted for mail fraud and witness tampering for allegedly “persuad[ing] or attempting to persuade” two undercover agents posing as customers “to conceal material facts and make false statements with the intent to influence, delay, and prevent the testimony” of the undercover agents “in an official proceeding….”

Williams’ defenders say this is entrapment, that the attempt to shut him down is implicit acknowledgment that the tests don’t work, and that Williams has a free speech right to criticize their use by demonstrating their manifest unreliability. Others–including many polygraph critics and yours truly–say that helping guilty people fool the tests goes beyond advocacy, and is a bridge too far.

What say you?

 

Read My Lips: No Heckler’s Veto

I sure wish those Faux News pundits who claim to revere the Constitution actually knew what was in it.

Evidently, Satanists in Oklahoma City are planning to hold a “black mass.” Whatever that is. Now, insofar as we can tell, these folks have been entirely peaceful–however much their views may offend  adherents of more traditional doctrines, the only “harm” they’ve inflicted has been to religious sensibilities.

Enter know-nothing Tucker Carlson.

Tucker Carlson opined that the Satanic leader “clearly just wants publicity.” He asked if “Christians are playing into his plan” by protesting. In response to whether Christian should ignore him, Fr. Morris said that everybody needs to do what they think is best, such as talking about it on Fox. He encouraged prayer for the Satanic leader’s soul. When Clayton Morris interjected that the city is standing on free speech, Fr. Morris asked “what about if I want to desecrate a Koran…and speak pro-Nazi stuff right in front of my church and get people all fired up on a public sidewalk.”  (The Satanic mass is not being held on the street). Despite his (and Fox’s) belief about limited government, he opined that “government has to step in and say you can’t incite violence in the name of free speech.” The chyron validated his point: “First Amendment Foul, City: Constitution Protects Right to Gather.”

This approach–oh, no, we can’t let [fill in the blank] speak, because what they have to say will anger people and spark civil unrest. We have to shut them down in order to preserve the public peace!–was the argument used across the American south to shut down people like Martin Luther King. It’s called the Heckler’s Veto, because it allows “hecklers”–people who disagree with what is being said–to veto the message.

The courts have consistently ruled that they can’t do that. The message from the bench has been clear: If the authorities are genuinely worried about breaches of the peace, they need to beef up security, not shut the speaker down.

Isn’t it interesting how many pompous frauds want the protections offered by the Bill of Rights for themselves–but don’t want those same rules applied to others?

I have news for Tucker Carlson: It’s only freedom when it applies to everyone. Even people you don’t like. If the government gets to pick and choose who gets to assert a right, it’s no longer a right. It’s a privilege.

And privileges can be revoked.

 

Money and Speech

The big problem with the Supreme Court’s insistence–ever since Buckley v. Valeo– that money is just a different form of speech is that the equation ignores reality.

In theory, it’s logical: I should be able to use my dollars to voice my support of the candidate who favors the same spay-neuter policies that I support. I should be able to signal my support for Candidate A by buying an ad in the local newspaper, or pooling funds with others to run that ad demonstrating that Candidate B pulled wings off flies when he was young. Whatever.

It’s freedom, dude.

The problem, of course, is that equating money with speech gives some people much louder voices than others. (You’d think the great minds on the Court might have noticed this lack of fiscal parity and been troubled by its implications, but this obvious privileging of the wealthy and powerful evidently escaped the majority’s notice.)

I thought about the consequences of the “money equals speech” formula yesterday, during a discussion with one of the producers of the homelessness documentary about which I’ve previously posted, “Uncharted: The Truth Behind Homelessness.” The small team that produced the documentary about the treatment of homeless folks in Indianapolis produced it on the proverbial shoestring;  now they are trying to raise enough money to promote it, and it has been a slog.

People who want to “sell” Indianapolis, people with a vested interest in a particular version of local reality, who want to focus national attention on our sports venues or other “shiny objects” have plenty of resources with which to do that. Their free speech rights are easy to exercise. The passionate students who put together this thoughtful and well-made film have the same theoretical freedom of speech that the cheerleaders enjoy. What they don’t have is resources.

A cynic might suggest that, without resources, their free speech rights are rather illusory.

I’m not in a position to change the jurisprudence that has gotten us here, but I am in a position to send a small check, to try to even the playing field just a little, to ensure that a disfavored message has a chance to be communicated. I hope some of the readers of this blog will join me. We’ll never have the decibels of the Koch Brothers, but together, perhaps we can help make at least this one message more audible.

This is their Paypal link: a-oppy1@hotmail.com 

Want to send a check? It can be made out to Lighthouse Research and mailed to: 12210 Laurelwood Ct., Indianapolis, IN 46236.

Because we know what the Court refused to acknowledge: free speech isn’t free.

Rupert Murdoch and Climate Change

One of the most thoughtful commenters to this blog recently sent me an interesting–albeit disquieting–article from Mother Jones. The subject was climate change and the curious fact that the countries with the largest numbers of skeptics were all English-speaking:  U.S., England and Australia. Canada wasn’t in the bottom cluster, but it was close.

Why would the English language correlate with climate skepticism? As the author, respected science reporter Chris Mooney, notes

There is nothing about English, in and of itself, that predisposes you to climate change denial. Words and phrases like “doubt,” “natural causes,” “climate models,” and other skeptic mots are readily available in other languages. So what’s the real cause?

Mooney quotes political scientists for (pretty unpersuasive) theories linking neoliberalism with denialism, but then he suggests a simpler–and very troubling–explanation:

The English language media in three of these four countries are linked together by a single individual: Rupert Murdoch. An apparent climate skeptic or lukewarmer, Murdoch is the chairman of News Corp and 21st Century Fox. (You can watch him express his climate views here.) Some of the media outlets subsumed by the two conglomerates that he heads are responsible for quite a lot of English language climate skepticism and denial.

In the US, Fox News and the Wall Street Journal lead the way; research shows that Fox watching increases distrust of climate scientists. (You can also catch Fox News in Canada.) In Australia, a recent study found that slightly under a third of climate-related articles in 10 top Australian newspapers “did not accept” the scientific consensus on climate change, and that News Corp papers—the Australian, the Herald Sun, and the Daily Telegraph—were particular hotbeds of skepticism. “The Australian represents climate science as matter of opinion or debate rather than as a field for inquiry and investigation like all scientific fields,” noted the study.

And then there’s the UK. A 2010 academic study found that while News Corp outlets in this country from 1997 to 2007 did not produce as much strident climate skepticism as did their counterparts in the US and Australia, “the Sun newspaper offered a place for scornful skeptics on its opinion pages as did The Times and Sunday Times to a lesser extent.” (There are also other outlets in the UK, such as the Daily Mail, that feature plenty of skepticism but aren’t owned by News Corp.)

I have long been a free speech purist–and I remain convinced by John Stuart Mill’s argument that only the freest expression and most robust exchange of ideas  will yield Truth (note capital T). Climate skeptics are entitled to their say, and Faux News is entitled to spew demonstrable inaccuracies and falsehoods on this and all manner of other issues, no matter how maddening some of us find that and no matter how much damage their fabrications do to our ability to produce sound public policies.

Ideally, a few wealthy individuals would not be allowed to dominate the media (the right to free expression does not include the right to crowd out dissenting opinions), but in the age of the Internet, restrictions on the number of media outlets one corporation can control are arguably unnecessary, and unlikely in any event.

We’ll just have to hope that Mill and others were right–that people will examine the information they are being fed, consider the sources of that information, and come to rational conclusions. And perhaps that’s happening; Fox News has been losing market share for the last few years.

We can hope….